Mcgregor

When a husband acquires property in the name of his wife, the law presumes that the property was intended to be a gift to her. If he acquires property in both their names, the presumption is that he intends for them to share the property equally. The principle is known as the presumption of advancement, but it does not arise when a wife acquires property in the name of her husband.

Many persons will argue that there is inequity in the position; but it is the law. Husbands will be happy to know, however, that the presumption may be rebutted if there is evidence to show that there was a contrary intention in acquiring the property in the name of the wife. The property might have been acquired in the wife's name for the sake of convenience, for example, for the purpose of obtaining a mortgage.

Documentary evidence

There are interesting cases arising from factual situations involving the purchase pf property in the joint names of married couples. In many cases, there is little documentary evidence to establish how the parties organised their affairs, because most dealings between married couples tend to be verbal.

Where a court is asked to consider whether property registered in the joint names of a wife and husband are actually owned by both of them, the court could begin with the presumption that the couple is entitled to share the property equally. However, if there is evidence of what the parties intended at the date of the acquisition, there will be no need to argue that the presumption arises. The court will simply consider the evidence.

Interest

This was the situation in one decision from the Court of Appeal. Property was purchased during the course of the marriage and registered in the names of the husband and the wife. When the parties separated, the wife applied to the court for a declaration that she had a 50 per cent interest in the property, but the husband claimed that she had not made any contribution towards the purchase price.

At the trial, the wife gave evidence that she had made substantial financial contribution towards acquiring the property, and the husband did not refute that he received the money. It was argued that the financial contribution clearly demonstrated that the wife was an equal partner with her husband in the purchase of the property. The court accepted this evidence and declared that the wife was entitled to a one-half interest in the property; and ordered that the property be sold and the net proceeds of sale be divided equally between the parties.

Presumption of advancement

It is interesting to note that the presumption of advancement also arises in cases where a parent purchases property in the name of a child. In one Canadian case, the father bought a sweepstakes ticket in the name of his 12-year-old daughter and the ticket won $50,000. The court ruled that, on the basis of the presumption of advancement, the money belonged to the daughter.

It would be interesting to see whether our courts will apply the presumption of advancement in dealings between common-law spouses, especially since such unions have legal recognition. The Australian courts have already declared that it does not apply to common-law unions.